join, dissenting:

Adamson has no valid double jeopardy defense to his prosecution for first degree murder, therefore I respectfully dissent.

1. Background.

John Harvey Adamson was charged with first degree murder in connection with the bombing death of Donald Bolles in Phoenix, Arizona. His first degree murder trial had commenced and was in the process of jury selection when Adamson and his attorneys struck a plea agreement with the district attorney whereby Adamson agreed to provide testimony against certain individuals, including James Robison and Max Dunlap, with regard to the murder of Donald Bolles, and to plead guilty to a charge of second degree murder. The plea agreement provided that Adamson would receive a sentence of 48-49 years imprisonment, with a maximum of 20 years, two months to be served, and that other charges pending against him would be dismissed.

The plea agreement was submitted to Arizona Superior Court Judge Birdsall for approval. At a formal hearing, the judge reviewed each detail of the plea agreement with Adamson, approved the agreement, and the first degree murder trial was suspended. The plea agreement provided for deferred sentencing; accordingly, the sentencing hearing was conducted without review of the details or consequences of the plea agreement.

2. Adamson’s Double Jeopardy Claim.

A review of Adamson’s double jeopardy claim 1 must acknowledge the “unique nature of the double jeopardy guarantee as compared to other constitutional rights.” United States v. Young, 544 F.2d 415, 418 (9th Cir.), cert. denied, 429 U.S. 1024 , 97 S.Ct. 643 , 50 L.Ed.2d 626 (1976). A double jeopardy claim implicates the “very power of the State to bring a defendant into court,” and thus is collateral to, and separable from, those constitutional claims which pertain to a determination of the principal issue at trial, i.e., whether or not the accused is guilty of the offense charged. Abney v. United States, 431 U.S. 651, 659 , 97 S.Ct. 2034, 2040 , 52 L.Ed.2d 651 (1977). Accordingly we have held that a plea of guilty to a charge brought in violation of the double jeopardy clause does not waive a double jeopardy defense. Lau- *736 nius v. United States, 575 F.2d 770, 771 (9th Cir.1978).

Whether a double jeopardy defense may be waived is a question this circuit has yet squarely to address. The Supreme Court has declined to hold that a double jeopardy claim may never be waived. Menna v. New York, 423 U.S. 61 , 63 n. 2, 96 S.Ct. 241 , 242 n. 2, 46 L.Ed.2d 195 (1975). The majority of sister circuits that have considered the question have concluded that a double jeopardy defense may be waived. See, e.g., United States v. Broce, 753 F.2d 811, 822 (10th Cir.1985) (double jeopardy claim may be waived by “an informed and intentional relinquishment specifically of ... rights under the Double Jeopardy Clause of the United States Constitution”); Brown v. Maryland, 618 F.2d 1057, 1058 (4th Cir.) (by pleading guilty after entering into a favorable plea bargain, defendant waived his right to be free from double jeopardy), cert. denied, 449 U.S. 878 , 101 S.Ct. 224 , 66 L.Ed.2d 100 (1980); McClain v. Brown, 587 F.2d 389, 391 (8th Cir.1978) (a bar to further prosecution because of former jeopardy is not a jurisdictional defect, but a defense or personal right which must be affirmatively pleaded or is considered waived); United States v. Perez, 565 F.2d 1227, 1232 (2d Cir.1977) (the constitutional immunity from double jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of trial, will be regarded as waived); United States v. Wild, 551 F.2d 418, 424-25 (D.C.Cir.) (constitutional rights which the defendant may waive include the right not to be twice put in jeopardy), cert. denied, 431 U.S. 916 , 97 S.Ct. 2178 , 53 L.Ed.2d 226 (1977); United States v. Buonomo, 441 F.2d 922, 924 (7th Cir.) (constitutional immunity from double jeopardy is a personal right which if not affirmatively pleaded at trial will be regarded as waived), cert. denied, 404 U.S. 845 , 92 S.Ct. 146 , 30 L.Ed.2d 81 (1971).

Notwithstanding Menna and our decision in Launius, it is certain that the double jeopardy bar is not absolute. This is nowhere more apparent than in the context of a retrial following a mistrial. Where a mistrial has been declared without the defendant’s request or consent, a new trial may take place so long as there existed a manifest necessity for the mistrial. Illinois v. Somerville, 410 U.S. 458, 461 , 93 S.Ct. 1066, 1069 , 35 L.Ed.2d 425 (1973). Similarly, “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution.” United States v. Jorn, 400 U.S. 470, 485 , 91 S.Ct. 547, 557 , 27 L.Ed.2d 543 (1971). This principle reaches its limits in permitting retrial following an unnecessary mistrial, declared without the defendant’s request or express consent, if the defendant’s statements or silences constitute an implied consent. See United States v. Smith, 621 F.2d 350, 351 (9th Cir.1980), cert. denied, 449 U.S. 1087 , 101 S.Ct. 877 , 66 L.Ed.2d 813 (1981).

The mistrial exceptions to the double jeopardy bar clearly refute the notion that the bar is absolute. The Supreme Court in United States v. Dinitz, 424 U.S. 600 , 609 n. 11, 96 S.Ct. 1075 , 1080-81 n. 11, 47 L.Ed.2d 267 (1976), has stated that a defendant’s double jeopardy guarantee against multiple prosecutions may be served by a mistrial declaration, and that the permissibility of retrial in such cases does not depend on a waiver of the defendant’s double jeopardy right. In certain cases a second prosecution may follow the midtrial dismissal of an indictment without running afoul of the double jeopardy clause. See Lee v. United States, 432 U.S. 23, 30 , 97 S.Ct. 2141, 2145-46 , 52 L.Ed.2d 80 (1977).

An exception to the double jeopardy bar pertinent to Adamson’s case is described in Jeffers v. United States, 432 U.S. 137, 152 , 97 S.Ct. 2207, 2217 , 53 L.Ed.2d 168 (1977). In Jeffers , the defendant elected to be tried separately on greater and lesser included offenses. Although a subsequent trial on a greater offense following trial on a lesser included offense is, as a general rule, prohibited by the double jeopardy clause, see Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), the Jeffers Court found that the defendant’s election deprived him of a double jeopardy defense to *737 the second trial. 432 U.S. at 152, 97 S.Ct. at 2217. The Jeffers Court did not speak of “waiver”; rather, the Court concluded that no violation of the double jeopardy clause had occurred. The second trial fell within an exception to the Brown rule, based on the defendant’s role in bringing about the second trial.

This view of the double jeopardy clause was expanded and strengthened in United States v. Scott, 437 U.S. 82 , 98 S.Ct. 2187 , 57 L.Ed.2d 65 (1978), where the Court found permissible a second trial on two counts that had been dismissed in midtrial at the defendant’s behest. The Court concluded that the policies underlying the double jeopardy clause do not extend “to include situations in which the defendant is responsible for the second prosecution.” Id. at 96 , 98 S.Ct. at 2196-97 . Again the Court declined to adopt a “waiver” analysis, stating that “the double jeopardy clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.” Id. at 99 , 98 S.Ct. at 2198 .

3. Adamson Knowingly Waived His Fifth Amendment Double Jeopardy Rights.

There is no presumption of acquiesence in the loss of fundamental constitutional rights. The courts indulge in every reasonable presumption against waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938). A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. Id.

On January 15, 1977, Adamson and his three court-appointed attorneys appeared in open court before Arizona Superior Court Judge Birdsall. Judge Birdsall reviewed the plea agreement with Adamson paragraph by paragraph, and at times, word by word. Adamson intentionally waived his double jeopardy rights when he accepted the totality of the plea agreement negotiated by his three attorneys. It is clear from the record that Adamson knew the circumstances confronting him and the consequences of entering into the plea agreement. Accordingly, his acceptance of the agreement constituted a waiver of all conflicting rights existing at that time.

The record shows the following: On January 15, 1977, Adamson was on trial as the defendant in Case No. CR 93385, Maricopa County, State of Arizona v. John Harvey Adamson, under a charge of open murder for the killing of Donald Bolles. On January 15, 1977, at a time set for continuing the voir dire examination of jurors in the case, the defense and the State of Arizona announced to the court that they had reached a plea agreement, and the document with two sealed exhibits, Exhibits A and B, were presented to the court. Exhibits A and B were referred to in, and were part of, the plea agreement. The exhibits were unsealed and Adamson signed each exhibit in open court whereupon the exhibits were replaced in their respective envelopes and sealed. The signatures of Adamson, his three attorneys and the two attorneys representing the State of Arizona were on the plea agreement.

The judge established that Adamson had four years of college education, never had any mental illness or disease, and was not under the influence of drugs or alcohol. Adamson acknowledged that his signature was on page 5 of the original plea agreement and that he had reviewed the agreement with all three of his counsel. 2 Judge Birdsall told Adamson that he initially plead not guilty to the charge that he murdered Donald Bolles on or about June 2, 1976 in Maricopa County, Arizona, and now by virtue of the plea agreement he was agreeing to plead guilty to murder in the second degree. Judge Birdsall reviewed the nature of murder in the second degree, and then in detail reviewed each paragraph *738 of the plea agreement with Adamson, receiving acknowledgements from Adamson that he understood each plea agreement provision. Adamson acknowledged that he understood that by entering a guilty plea he was giving up his constitutional rights of a speedy public trial by a jury, (his trial being into the third week and in the process of jury selection), the confrontation of witnesses, the presentation of evidence on his own behalf, the right to compel attendance of witnesses, the right to be represented by counsel, and the right to remain silent.

Judge Birdsall reviewed paragraph 5 of the plea agreement with Adamson word for word. 3 He explained to him that one of the provisions of that paragraph was that should Adamson refuse to testify or at any time testify untruthfully concerning the crimes mentioned in the agreement, then the agreement would become null and void, and he would be subject to the charge of open murder. Adamson was told that if he was charged and found guilty of first degree murder, he would be subject to the penalty of death or life imprisonment requiring a mandatory twenty-five years of actual incarceration. Adamson stated that he understood what would happen if for any reason the agreement became null and void and the open murder charges were reinstated. As a result of understanding and agreeing to that provision, Adamson, with the advice of his attorneys, accepted the totality of the plea agreement and the benefits derived therefrom in exchange for the rights and powers he had relinquished as set forth in the agreement. Each of the parties had now recast their legal status, and their respective rights and powers, into the terms of the integrated plea agreement which set forth their new rights and powers, including the enforcement provisions of paragraph 5.

At the conclusion of the plea agreement review Judge Birdsall read Adamson’s, his attorneys’ and the state prosecutors’ ac-knowledgements of the agreement into the record. 4 All the parties confirmed their signatures and acknowledgements. Judge Birdsall then requested Adamson to establish a factual basis for his plea of guilty to the crime of murder in the second degree, whereupon Adamson related the facts of his participation in the killing of Donald Bolles. At this point Judge Birdsall confirmed that Adamson was satisfied with the legal representation of his three court appointed attorneys and that he had no complaints concerning the manner in which they had represented him as his attorneys.

The court deferred acceptance of the sentencing provisions in the plea agreement until it could receive and review a presen-tence report, and concluded by accepting the plea agreement and Adamson’s plea to the charge of murder in the second degree.

*739 On January 19, 1977, Judge Birdsall after having reviewed the presentencing report found that the provisions contained in the plea agreement regarding the sentence to be imposed upon Adamson were appropriate and that Adamson should be sentenced strictly in accordance with the provisions contained in the plea agreement. The sentencing date was to be subject to call, and the court set a review hearing in the matter for January 18, 1978, one year from the date of the hearing. All of the jurors were permanently excused and the case was recessed.

It is evident from a review of the record and of the entire plea agreement and exhibits that the purpose of the plea bargaining was for Adamson, with advice of counsel, to waive any rights he may have had at the time the plea agreement was entered into and to proceed in accordance with the terms of the agreement. He knowingly relinquished and abandoned his right to proceed with the open murder trial subject to the condition that if the agreement was breached and became null and void that the parties would be returned to the positions they were in before the agreement. If Adamson breached the agreement, he could again be subject to a first degree murder charge, but he would also reacquire the defenses he had waived, especially as to the incriminating statements he had given as part of the agreement. Adamson does not question the legal sufficiency of his counsel’s advise regarding the legal rights he waived under this agreement. It is clear from the record that Adamson, with the aid of his attorneys, knowingly and willingly waived any defense to being subjected again to a first degree murder charge (double jeopardy). Adamson accepted the integrated terms and operation of the plea agreement in exchange for the situation he found himself in at the time the agreement was entered into.

We now must analyze what Adamson received under the plea agreement and what the other parties to the agreement expected and to what they were entitled.

At the time the plea agreement was entered into, Adamson was on trial under an open murder charge for the killing of Donald Bolles. In addition, the state could have prosecuted Adamson for the crimes listed in Exhibits A and B to the plea agreement, crimes in which Adamson’s involvement was then known to the police and subject to police reports, and crimes which Adamson had revealed to the state in transcribed statements. Also there were charges in other cases pending against Adamson and other defendants in the Mari-copa County Superior Court. The state had the power to try Adamson for each of those crimes, and society and the victims of all those crimes had a legitimate expectation and an interest that the state would prosecute those crimes. The state surrendered that power, and society and the victims through the state gave up their expectations and interests in exchange for Adamson’s plea of guilty to the charge of murder in the second degree for the murder of Donald Bolles, and further for Adamson’s promise that he would testify fully and completely as required by the plea agreement. As a result of entering into the plea agreement, not only did Adamson eliminate the possibility of being found guilty of murder in the first degree in the pending trial, but he also obtained the state’s agreement not to prosecute him for the crimes listed in Exhibits A and B and in paragraph 6 of the plea agreement. The many serious actions and charges against Adamson which could have resulted in a death penalty or imprisonment for the rest of his life were dismissed with prejudice. Adamson bargained for, and received as a result of the second degree murder guilty plea, a sentence no longer than twenty calendar years and two months. Adamson obtained federal immunity from prosecution and was allowed to serve his sentence in a prison outside of the State of Arizona. In turn all that was required of Adamson was his truthful and complete testimony concerning crimes in which he admitted he was involved, and as to which he was obtaining immunity and freedom of prosecution.

*740 To protect the rights of the state in the plea agreement, and to insure the value of Adamson’s promise to testify, paragraph 5 of the plea agreement provided that, in the event he failed to testify or defaulted in the terms of the plea agreement, the plea agreement would become null and void and that all original charges would be reinstated.

To insure the mutual benefit and validity to the plea agreement justifying the removal of Adamson from the threat of the pending trial and all future charges and trials, Adamson waived the rights that would have precluded his being charged again and tried for open murder as a part of the mutuality of waiver of rights and powers that all parties agreed to in the plea agreement. The plea agreement redefined the rights and powers of the parties in an integrated contract. By entering into the plea agreement the parties waived any constitutional rights they may have had and substituted therefor the contractual terms and remedies. Any other interpretation renders the plea agreement ineffectual and unenforceable from the inception.

4. Adamson’s First Degree Murder Conviction is the Consequence of his Voluntary Choice and is Not Invalidated by the Double Jeopardy Clame.

The majority correctly notes that valid waiver of a constitutional right ordinarily requires that there be an “intentional relinquishment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 , 58 5. Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The majority errs, however, in its implicit and fundamental premise that only a waiver could remove the double jeopardy bar to Adamson’s retrial. The foregoing review of exceptions to the double jeopardy bar should dispel the notion that waiver is an invariable prerequisite to a valid second trial where jeopardy has once attached. Indeed, Jeffers v. United States, 432 U.S. 137, 152 , 97 S.Ct. 2207, 2217 , 53 L.Ed.2d 168 (1977), turned on this very point, and, I believe, disposes entirely of Adamson’s double jeopardy claim.

In Jeffers , as in Adamson, the two prosecutions were for a greater and lesser included offense. The defendant in Jeffers sought to have the greater and lesser included offenses tried separately. The Court concluded that the defendant’s role in bringing about the successive trials removed any constitutional barrier to the second prosecution. Id.

This essentially is Adamson’s case. Jeopardy attached upon Adamson’s entry of a guilty plea. See United States v. Vaughan, 715 F.2d 1373, 1376 (9th Cir. 1983). By entering into the plea agreement, Adamson elected the lesser included offense — second degree murder. The only difference from Jeffers is that there, a second prosecution on the greater offense was a certainty; for Adamson it was contingent upon his breach of the plea agreement. But this distinction is without constitutional significance, and in any event would seem to weigh in favor of the state in the case before us.

The Jeffers Court noted that “the considerations relating to the propriety of a second trial obviously would be much different if any action by the Government contributed to the separate prosecutions on the lesser and greater charges.” 432 U.S. at 152 n. 2, 97 S.Ct. at 2217 n. 2. In other words, a different result might have been required had the government acted unilaterally to separate the trials, or if the defendant’s voluntariness was compromised or otherwise at issue. Adamson does not seriously contest his voluntariness in entering into the plea agreement, and the state can hardly be held accountable for Adamson’s admitted refusal to be interviewed in preparation to testify — the triggering event which, after all, set into motion the second prosecution. Adamson must accept responsibility for the second prosecution; the double jeopardy clause “does not relieve a defendant from the consequences of his voluntary choice.” United States v. Scott, 437 U.S. 82, 99 , 98 S.Ct. 2187, 2198 , 57 L.Ed.2d 65 (1978).

The state’s freedom from blame in the events leading to Adamson’s retrial distin *741 guishes this case from Menna v. New York, 423 U.S. 61 , 96 S.Ct. 241 , 46 L.Ed.2d 195 (1975), and Launius v. United States, 575 F.2d 770 (9th Cir.1978). In Menna , the defendant was charged with an offense for which he had already served a sentence. Thus, the charge was one the state constitutionally could not prosecute. 432 U.S. at 62 n. 2, 96 S.Ct. at 242 n. 2. The state had acted to place the defendant in double jeopardy; accordingly, the defendant’s plea of guilty, which removed only the issue of factual guilt from the case, did not impair the defendant’s legitimate double jeopardy defense. Id.

Similarly, in Launius , defendants pleaded guilty to a multiplicious information, and received consecutive sentences on two counts, exceeding the statutory maximum for the single offense charged. 575 F.2d at 771 . The government was responsible for initiating proceedings in violation of the double jeopardy clause. The defendants’ guilty pleas did not waive their double jeopardy rights. Id. at 772 . In both these cases the double jeopardy violation was directly attributable to the government in the first instance.

Adamson, however, did not plead guilty to an indictment brought in violation of the double jeopardy clause. By the same token, the state did not attempt to redeem an otherwise invalid prosecution by bargaining for his guilty plea. The second prosecution sprung from the terms of the plea agreement itself. Adamson voluntarily agreed to those terms, precipitated his second prosecution, and should not now be heard to complain of the result.

Whether Adamson’s actions are viewed as a waiver or as a voluntary choice, his double jeopardy claims fail.

5. Adamson Knowingly and Intentionally Breached the Plea Agreement.

There should be little doubt that Adam-son breached his obligation when he expressly refused to provide interviews in preparation for his testimony in the retrial of Robison and Dunlap. The purpose of the plea agreement was to obtain Adam-son’s testimony concerning certain crimes listed in the agreement and in Exhibits A and B and specifically with regard to the Robison and Dunlap trials, the defendants therein being charged with the murder of Donald Bolles. Unless Adamson’s testimony as required by the plea agreement was obtained for the state there is no purpose for the plea agreement and for relieving Adamson of the charges and prosecutions listed in the plea agreement. The agreement at paragraph 5 required Adamson to testify truthfully and completely at all times, whether under oath or not, to the crimes mentioned in the plea agreement, including all interviews, depositions, hearings and trials. In paragraph 4 of the plea agreement Adamson agreed to testify fully and completely when requested by proper authorities. By his April 3, 1980, letter through his attorney, Adamson refused to provide requested pretrial interviews, in plain breach of his obligation.

I cannot agree with the majority’s view that Adamson was merely advancing a reasonable interpretation of the plea agreement. The majority points to Paragraph 8, which states that Adamson would be sentenced “at the conclusion of his testimony in all of the cases,” as the only unambiguous language in the plea agreement regarding the point at which Adamson’s obligation to testify would terminate. This language cannot be interpreted out of context and does not bear the construction the majority places upon it. It does not support the view that, by sentencing Adamson, the state relieved him of his duty to testify. The totality of the plea agreement suggests, and common sense demands, that Adamson was required to testify in the Dunlap and Robison trials whenever called upon to do so.

Paragraph 8 of the plea agreement provides “All parties to this agreement hereby waive the time for sentencing and agree that the defendant will be sentenced at the conclusion of his testimony in all of the cases referred to in this agreement and in Exhibits A and B, which accompany it.” (Emphasis added). Adamson argues that because he was sentenced before the re *742 trial of the state’s cases against James Robison and Max Dunlap he had no obligation under the plea agreement to testify at the retrial of those two cases. Adamson is incorrect in his contention and the record contains substantial evidence clearly supporting the conclusion that he knowingly and intentionally breached the plea agreement.

Adamson’s attorney, William H. Feld-hacker, 5 wrote a letter to the Assistant Attorney General on April 3, 1980, (Appendix B to the majority opinion) stating that he and his law partner had met with John Adamson, and that after lengthy discussions and considerations of all the various aspects of the case and potential ramifications to Mr. Adamson, he was advising the Attorney General of the following matters contained in the letter. The letter stated, “John Harvey Adamson believes that he has fully complied with and completed his plea agreement entered into with the State of Arizona. It is, therefore, his position that his future testimony in any case involving the defendants Max Dunlap or James Robison regarding the killing of Donald Bolles will only be given upon the offer of further consideration by the State of Arizona.” (Emphasis added).

The reason for the letter is apparent from its first paragraph wherein it confirmed telephone discussions between the state attorneys and Adamson’s attorneys as to the availability of Adamson for interviews in preparation for his expected testimony in the retrials of the State of Arizona against James Robison and Max Dunlap. Interviews are clearly and explicitly stated as one of Adamson’s obligations in the plea agreement. Throughout the letter the wording establishes that the statements are communications from John Adamson through his attorney to the state. “John Harvey Adamson is well aware of the fact that he can be subpoenaed ... by your office to appear as a witness in any criminal matter; however, he is further aware that the fact that he may be called to the stand does not mean he must testify” (paragraph 2); “John Harvey Adamson is further fully aware of the fact that your office may feel he has not completed his obligations under the plea agreement in CR-93385 and, further, that your office may attempt to withdraw that plea agreement from him” (paragraph 3); “If the State of Arizona desires to have Mr. Adam-son testify in any further proceedings against James Robison or Max Dunlap, it is John Adamson’s position that the following conditions must be met.” (Paragraph 4). And then Adamson listed his demands.

Adamson’s attorneys do not render their opinion as to whether Adamson’s position is correct or reasonable — only that Adam-son had taken a position. The language of the letter is carefully couched in this regard. The second sentence in the last paragraph states that “The plea agreement was drafted in such a manner that it was anticipated to be concluded prior to Mr. Adamson’s sentencing.” What the plea agreement states is controlling, not what Adamson at the moment of breach alleges was anticipated.

The plea agreement defines the time for sentencing, but it does not set the time for an absolute conclusion of Adamson's duty to testify. Paragraph 18 of plea agreement states that Adamson was to remain in the custody of the Pima County Sheriff from the date of the entry of his plea until the conclusion of his testimony in all of the cases in which Adamson agreed to testify. That paragraph does not limit his duty to testify only to such time that he remains in the custody of the Pima County Sheriff. The plea agreement and the sentence had been accepted by Judge Birdsall and there remained only a ministerial act of a sentencing hearing to complete the imposition of the sentence fixed by the plea agreement. Adamson’s change in status with the Pima County Sheriff and the sentencing only changed the place of his incarcera *743 tion. That ministerial act of sentencing did not change nor could it change his guilty plea, or the acceptance of a guilty plea by the court, or the terms of the plea agreement including the sentence fixed by the plea agreement. When the plea agreement was finally accepted by the judge he stated “The defendant will be sentenced strictly in accordance with the provisions contained in the plea agreement.” 6 The sentencing date was set by Judge Birdsall at that time for January 18, 1978, in accordance with his policy and practice not to leave any criminal case sentencing date on a subject to call basis.

The procedure in paragraph 8 waived the time for sentencing and set a time for sentencing not for setting a conclusion on Adamson’s duty to testify or retestify in a retried case. This subject was discussed with Adamson and all attorneys by Judge Birdsall at the change of plea hearing on January 15, 1977. Judge Birdsall apprised Adamson that he was entitled under the Arizona Rules of Criminal Procedure to be sentenced within ninety days from the acceptance of his plea agreement and that pursuant to the agreement he was waiving the time for sentencing.

The record establishes that Adamson’s continuing obligation to testify, before and after sentencing, was known and understood by Adamson and his attorneys. This is clearly set forth in the dialogue at the December 7, 1978, sentencing hearing before Judge Birdsall in Case No. CR-93385. Adamson and his attorneys, Gregory H. Martin and William H. Feldhacker, were present, together with the Assistant Attorney General William J. Schafer III. As the court was proceeding with the sentencing in accordance with the plea agreement, the following was said:

Transcript at page 43. (Emphasis added).

Adamson was then sentenced.

It is Adamson’s position at this time that his former attorneys have sworn that the “further testimony” involved a wholly separate case than the Bolles murder case, and arising out of the arson of the Ashford Plumbing Company in Phoenix, Arizona. See page 3 n. 2 Appellant’s Supplemental Brief on Rehearing En Banc. In fact, that “further testimony” is testimony contemplated by and included specifically in the plea agreement, the Ashford Plumbing Company case being one of the cases listed in Exhibits A and B to the plea agreement. Adamson’s counsel, William Feld-hacker, in his argument of Adamson’s petition for special action before the Arizona Supreme Court on May 28, 1980, appeared with Adamson’s other former attorney, Glen Martin. Mr. Feldhacker stated to the court his explanation of the colloquy between counsel at the sentencing hearing before Judge Birdsall regarding the “further testimony.” He told the Arizona Supreme Court that at the time of sentencing there was one case left which required Adamson’s testimony, and it was from Exhibits A and B appended to the plea agreement, State of Arizona versus Ashford. He admitted to a conversation with Mr. Schafer discussing the Ashford case, in *744 which he agreed that, if necessary Adam-son may have to testify in that case. 7

It is obvious that testimony after sentencing was contemplated by the clear language of the plea agreement and understood and intended by the parties. Adam-son’s anticipated testimony in the Ashford case after sentencing was not an addition to or amendment of the plea agreement by the parties, but was one of Adamson’s obligations required by the plea agreement, acknowledged by Adamson, Adamson’s counsel and the state at Adamson’s sentencing hearing on December 7, 1978. Adamson can not assert a reservation for refusal to further testify after sentencing in the Robison and Dunlap Bolles murder cases, and at the same time acknowledge an obligation to testify in the Ashford case after sentencing. The plea agreement makes no such distinctions.

Adamson, in an attempt to take a negotiation advantage as a result of the reversal of the Robison and Dunlap cases refused to. testify. He attempted to better his position but also took the risk of the refusal to testify. His position at the same time frustrated the state’s prosecution of Robison and Dunlap cases and destroyed the very essence of the plea agreement. Adamson never raised the defense of double jeopardy during the time when he was receiving the benefits guaranteed to him by the plea agreement. However, when the Arizona Supreme Court held that Adamson had breached the plea agreement by refusing to testify, and vacated the second degree murder conviction and sentence and reinstated the open murder charge, 8 Adamson then asserted the position that the plea agreement violated his double jeopardy rights. 9 *745 In fact, those rights were waived when he entered into the plea agreement, and the reinstatement of the first degree murder charge was the consequence of his voluntary choice and excepted from the double jeopardy defense, as fully discussed supra.

In order to escape a possible first, degree murder conviction in the trial which was pending at the time of the plea agreement, Adamson accepted all the benefits the state was willing to give for his testimony. Then when faced with further testimony in the Robison and Dunlap cases he attempted to compound his benefits, with further detriment to the state, for the “additional testimony” which was in fact fully contemplated by the plea agreement. The plea agreement and the statements Adamson gave in connection with the plea agreement ostensibly set forth all of the crimes which he was willing to reveal and obtain dismissal and immunity for. However, in paragraph 4(f) of his demand letter of April 3, 1980, Adamson demands further immunity for any and all crimes in which he may have been involved. This is a request for more protection when the state is still only trying to obtain what it had originally had bargained for; testimony with regard to the Donald Bolles murder and the other crimes listed in the plea agreement.

After Adamson proceeded in breach of the agreement, the sequence of events that followed was entirely predictable; indeed, the outcome was specified by the plea agreement. Because the results of Adam-son’s breach were fully contemplated and determined by the plea agreement, it should be upheld by this court.

6. Prosecutorial Vindictiveness.

I would also reject Adamson’s claim that his second conviction violates due process because it is the product of prosecutorial vindictiveness.

In advancing this claim, Adamson relies primarily on the Supreme Court’s decision in Blackledge v. Perry, 417 U.S. 21 , 94 S.Ct. 2098 , 40 L.Ed.2d 628 (1974). The Court in Blackledge held that due process forbids a prosecutor from bringing increased charges in retaliation to a defendant’s exercise of a constitutional right. Id. at 27-28 , 94 S.Ct. at 2102-03 . The prohibition against prosecutorial vindictiveness does not require evidence that retaliatory motivation actually existed; rather, it is to the appearance of vindictiveness that the prohibition is directed. The underlying policy is to insure that apprehension of retaliation does not deter a defendant’s exercise of the right to appeal or to collaterally attack a first conviction. Id. at 28 , 94 S.Ct. at 2102-03 .

The problem for Adamson is that he can point to no exercise of a constitutional right that precipitated his second prosecution on an increased charge. Indeed, the retrial came about because of his breach of a plea agreement. Because there had been no exercise of a constitutional right, the Blackledge “presumption of vindictiveness,” and the policy underlying it, does not apply.

Although Adamson invoked his fifth amendment rights when he refused to testify at a pretrial hearing in the Dunlap and Robison retrials, this exercise of a constitutional right was wholly unconnected to his reprosecution. Adamson had acted in breach of the agreement by his letter of April 3, 1980. The state, by its letter of April 9, 1980, had already indicated that it considered that Adamson had breached the agreement, and his breach permitted reinstatement of the original charges and Adamson’s original defenses.

The prosecutor’s freedom to seek increased charges is vital to the integrity of the plea bargaining process, and is well supported by case law. The Supreme Court in Bordenkircher v. Hayes, 434 U.S. 357, 364-65 , 98 S.Ct. 663, 668-69 , 54 L.Ed.2d 604 (1978), held that a prosecutor properly could use the threat of increased charges to secure a plea agreement. This is exactly what happened in Adamson’s case. The prospect of a first degree murder charge induced Adamson to plead guilty to second degree murder and to promise to testify against Robison and Dunlap and as further specified in the plea *746 agreement. The agreement provided for reinstatement of the first degree murder charge in the event of breach.

It is totally unreasonable and senseless to suggest that the prosecutor could fairly strike a bargain with a first degree murder reinstatement provision, but that prohibitions against prosecutorial vindictiveness prevent his carrying it out.

The evidence supported the first degree murder charge against Adamson, and society and the victims had a legitimate interest in seeing that charge filed and pursued. In view of the especially savage Bolles murder contract it would have been amazing if the prosecutor had filed anything else. There is no vindictiveness evident in the prosecutor’s intent to retry Adamson. The intent to retry arose long before Adamson refused to testify as it was included in the paragraph 5, reinstatement provision of the plea agreement. Allowing Adamson to decide whether or not he should breach the plea agreement or to challenge it constitutionally, and once having lost the challenge to again volunteer to perform the plea agreement makes the reinstatement clause totally illusory. This gives Adamson the unilateral right to defeat the substance and value of the plea agreement. The threat of the death penalty against Adamson was necessary to insure performance of Adamson’s promise that he would testify in accordance with the plea agreement. In any trial or retrial once the trial court swears and seats the jury and the trial proceeds double jeopardy attaches as to that specific defendant. Crist v. Bretz, 487 U.S. 28 , 29, 98 S.Ct. 2156, 2157-58 , 57 L.Ed.2d 24 (1978). If at that point Adamson takes the stand and asserts the Fifth Amendment, which he had the power (not the right) to do under the plea agreement, then the Dunlap or Robison cases or any other case in which he was to testify cannot be prosecuted. Adamson in fact did that and caused that exact result with his breach letter of April 3, 1980. In fact, in paragraph 2 of his letter he evidenced his threat that he could not be made to testify. At that point a contempt citation did not bother Adamson. The heart of the plea agreement is the default clauses, paragraphs 3, 5, 11 and 15, containing the reinstatement of open murder charges to prevent Adamson from unilaterally defeating the agreement. Adam-son’s testimony and credibility were crucial to the conviction of Dunlap and Robison. See State v. Robison, 125 Ariz. 107 , 608 P.2d 44, 45 (1980). Adamson’s unilateral nonnegotiable demands for his testimony in the retrials destroyed his credibility and the state acted without vindictiveness and appropriately under the agreement to reinstate the open murder charges.

7. The Improper Reinstatement of the Second Degree Murder Conviction and Sentence.

The majority erroneously reads Paragraph 5 in isolation and concludes that under its provisions Adamson’s breach would result only in voiding the executory agreement but would have no effect on the second degree murder judgment of conviction and sentence. To the contrary, Paragraph 15, by its very terms applies where the agreement has been voided, and requires that the parties be returned to their positions prior to agreement. Thus the majority’s view that the conviction and sentence somehow would survive is refuted by a plain reading of the agreement itself. To leave Adamson with a second degree murder conviction based on his guilty plea, and with a sentence meted out precisely according to the terms of the agreement, would hardly return him to his position before the agreement.

Adamson cannot again be tried for first degree murder, the plea agreement has been made unenforceable and worthless by the majority opinion, and the parties are left with the scattered remains of all the proceedings which have transpired.

Reinstatement of the second degree murder judgment and sentence is not before this court. The majority, however, having freed Adamson from the death penalty, attempts to prevent his release by imposing upon the Arizona Supreme Court the burden of reinstating the second degree mur *747 der conviction within six months. If for any reason the Arizona Supreme Court fails to reinstate the conviction within the six months, Adamson, who has admitted to the involvement in and commission of the crimes set forth in the plea agreement, will go free. Adamson’s status may be in question if the Arizona Supreme Court is unable to reinstate the conviction until after six months. The Arizona Supreme Court’s burden is further enhanced by the spectre of another double jeopardy attack based upon the reasoning of the majority opinion. I respectfully submit that the plea agreement was negotiated by the parties to avoid the complications and convolutions brought on by the majority’s misinterpretation of the plea agreement, all as set forth in this dissent.

I would affirm the district court’s denial of Adamson’s petition for writ of habeas corpus.

. The double jeopardy issue was not raised by Adamson in the district court or his appeal from the district court, but was raised for the first time in this habeas corpus proceeding in appellant’s Supplemental Brief on Rehearing En Banc. The double jeopardy defense had been previously rejected by this court in a prior habeas corpus proceeding. See Adamson v. Hill, 667 F.2d 1030 (9th Cir., 1983), cert. denied, 455 U.S. 992 , 102 S.Ct. 1619 , 71 L.Ed.2d 853 (1982).

. The judge asked “At this point do you believe you understand the provisions of the plea agreement?” Adamson answered “Entirely sir.” The judge then asked Adamson "Do you have any questions that you want to ask me about before we go any further?” and Adamson answered "No sir.” Transcript, Change of Plea, January 15, 1977, at 7.

. Paragraph 5 of the plea agreement provides: It is agreed by all parties that the defendant shall testify truthfully and completely at all times, whether under oath or not, to the crimes mentioned in this agreement. This shall include all interviews, depositions, hearings and trials. Should the defendant refuse to testify or should he at any time testify untruthfully or if any material fact in the defendant’s transcribed statements given to the State prior to this agreement be false, then this entire agreement is null and void and the original charge will be automatically reinstated. The defendant will be subject to the charge of Open Murder, and if found guilty of First Degree Murder, to the penalty of death or life imprisonment requiring mandatory twenty-five years actual incarceration, and the State shall be free to file any charges, not yet filed as of the date of this agreement.

. Adamson signed the following acknowledgement: "I John Harvey Adamson, have read this agreement with the assistance of counsel, understand its terms, understand the rights I give up by pleading guilty in this matter, and agree to be bound according to the provisions herein.” Adamson’s three attorneys signed the following acknowledgement: "We have discussed this case and the plea agreement with the defendant. We have advised him of his rights and the consequences of his plea, and we concur in his entry of this plea.” The state prosecutors signed the following acknowledgement: “We have reviewed this agreement and agree on behalf of the State of Arizona that the terms and conditions set forth herein are appropriate and are in the interests of justice.”

. One of the same three attorneys that appeared for Adamson at his trial, the change of plea hearing and the sentencing hearing.

. Case No. CR-93385, State of Arizona v. John Harvey Adamson, January 19, 1977 Transcript, Wednesday, 10:00 a.m., before Judge Birdsall, page 37, lines 13-15.

. The following conversation took place in the Arizona Supreme Court hearing:

Adamson v. Superior Court, No. 14898, Transcript of Proceedings, May 28, 1980, commencing at page 6, line 21. (Emphasis added).

. Adamson v. Superior Court, 125 Ariz. 579, 583, 584 , 611 P.2d 932, 936, 937 (1980).

. It was at this point that Adamson filed his first Petition for Writ of Habeas Corpus in the district court which was dismissed on September 26, 1980. Adamson then appealed that order to this court claiming that the rejection of his double jeopardy argument by both the Arizona Supreme Court and the district court rested on erroneous interpretations of the plea agreement, and that he was denied due process for failure of the courts to hold a full evidentiary hearing to determine that material facts surrounding the breach of the plea agreement. In unpublished Memorandum No. 80-5941 this court on November 30, 1981 affirmed the district court dismissal of Adamson’s habeas corpus petition, and upheld the Arizona Supreme Court and federal district court interpretation that Adamson had breached the plea agreement by refusing to testify, and that the plea agreement did not contemplate renegotiation in the event of a retrial. This court further held that Adamson’s double jeopardy rights had not been violated, and that due process did not require an evidentiary hearing. Adamson v. Hill, 667 F.2d 1030 (9th Cir., 1981) see page 5 n. 4. The United States Supreme Court denied certiorari on March 1, 1982, 455 U.S. 992 , 102 S.Ct. 1619 , 71 L.Ed.2d 853 .